Tuesday, February 8, 2011

House rejects measure that would extend key Patriot Act provisions through December

By Felicia Sonmez
The Washington Post

A measure to extend key provisions of the Patriot Act counterterrorism surveillance law through December failed the House Tuesday night, with more than two-dozen Republicans bucking their party to oppose the measure.

The House measure, which was sponsored by Rep. Jim Sensenbrenner (R-Wis.) and required a two-thirds majority for passage, failed on a 277-to-148 vote. Twenty-six Republicans voted with 122 Democrats to oppose the measure, while 67 Democrats voted with 210 Republicans to back it. Ten members did not vote.

The measure would have extended three key provisions of the Patriot Act that are set to expire on Monday, Feb. 28, unless Congress moves to reauthorize them. One of the provisions authorizes the FBI to continue using roving wiretaps on surveillance targets; the second allows the government to access "any tangible items," such as library records, in the course of surveillance; and the third is a "lone wolf" provision of the Intelligence Reform and Terrorist Prevention Act that allows for the surveillance of targets who are not connected to an identified terrorist group.

The vote came as several tea party-aligned members of the new freshman class had been expressing doubts about the measure.

Kentucky Republican Sen. Rand Paul, who highlighted his opposition to the law during his upstart 2010 Senate campaign, signaled Monday that he may vote ultimately vote against an extension when the measure comes up in the Senate, likely later this month.

"I've had a lot of reservations about the Patriot Act," Paul said when asked whether he's leaning toward voting for an extension. "We're reviewing it and we're going over it, and we will have something out probably in the next couple of days," he added. "We won't be shy about it when it comes out."

Paul's father, Rep. Ron Paul (R-Texas), was among the trio of Republican lawmakers who opposed the Patriot Act when the House approved it in October 2001.

Some young conservative lawmakers, including Rep. Jason Chaffetz (R-Utah), had not yet decided how they would vote ahead of Tuesday night; Chaffetz later said in an interview after the vote that he had indeed decided to support the measure. A spokesperson for Chaffetz's Utah colleague, conservative freshman Sen. Mike Lee (R), did not immediately respond to a request for comment.

Meanwhile, one of the Senate's newly-elected moderate Republicans, Sen. Mark Kirk (Ill.), said Monday that he's likely to vote in favor of extending the Patriot Act provisions, adding that "it would be smart" for the Senate to back a three-year extension.

"Having it disappear is not the right answer," Kirk said.

Some Democrats opposed to the Patriot Act had seized on Tuesday's vote as an opportunity to question tea-party-backed lawmakers' reverence for the Constitution.

Ohio Democratic Rep. Dennis Kucinich, who voted against the measure in 2001, released a statement Monday calling Tuesday's House vote "the tea party's first test."

"The 112th Congress began with a historic reading of the U.S. Constitution," Kucinich said. "Will anyone subscribe to the First and Fourth Amendments tomorrow when the PATRIOT Act is up for a vote? I am hopeful that members of the Tea Party who came to Congress to defend the Constitution will join me in challenging the reauthorization."

The Patriot Act has long been an issue that has not divided neatly along party lines. Former Wisconsin Democratic Sen. Russ Feingold was the only senator to originally vote against the measure in 2001 and was among the law's most outspoken opponents. But as portions of the law have come up for reauthorization over the years, its opponents have often included both Republican and Democratic members.

The White House on Tuesday said in a statement that it "does not object" to extending the three Patriot Act provisions until December 2011 although it "would strongly prefer" an extension until December 2013, noting that the longer timeline "provides the necessary certainty and predictability" that law enforcement agencies require while at the same time ensuring congressional oversight by maintaining a sunset.

In addition to the House legislation, the Senate is considering three competing timelines, including proposals that would permanently extend the three provisions or extend them through 2013. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.), both of whom have introduced competing proposals, said Monday that committee members continue to work toward an agreement but declined to speculate as to the end result.

"We're working on that this week," Leahy said. "It's got to be done. ... I don't want it to be a situation where none of them go through."

Repeal or Revise – the Problems with the PATRIOT Act

By Dave Nalle
Republican Liberty Caucus

One of the few good things about the USA PATRIOT Act is that it has to be reviewed and renewed periodically by Congress. The bad news is that it is up for renewal at the end of this month and President Obama has recommended renewal of the act without substantive changes. This is not the kind of change many of his supporters wanted to see, and there are also many civil libertarians on the political right who would like to see the USA PATRIOT Act repealed or at least revised to eliminate some of the worst provisions.

There are several particularly bad sections of the act which run directly counter to the rights guaranteed and protected in the Bill of Rights and which ought to be considered for removal, or should to be enough to justify just not renewing the whole bill. If you aren’t aware of exactly what they are or why people object to them, here are the basics.

Section 206: Roving Wiretaps

This section allows the FBI to wiretap a phone or any wireless communications, including internet broadband transmissions, without having to get a warrant or even provide the target’s name or phone number. They can basically just tap into any communications they want with no due process and no court approval. In many cases they just park a van near your house and monitor all of your communications with no notice, no warrant and no accountability. Recent evidence suggests that abuse of this power has been widespread in tens of thousands of cases in the last 5 years. This is an obvious and direct violation of 4th Amendment protections and should be repealed or revised to require judicial oversight.

Section 213: Sneak and Peak
This section allows secret searches of private property without notifying the resident. They can come to your house when you’re away, break in and search it and not tell you until after the fact. This can also be extended to electronic searches, allowing them to be conducted without prior notification. Again, a clear violation of due process under the 4th Amendment which should be done away with .

Section 215: Library Records
This section lowers the standard of proof needed to get a court order to access private records. It gets rid of the requirement to identify the target of surveillance and prove the relevance of evidence they are going after. It allows the FBI to get special warrants for all sorts of privately held business or professional records without necessarily demonstrating their relevance to any specific investigation. It essentially allows “fishing expeditions” where they gather data on speculation and try to develop a case from it. It can also lead to malicious requests where they tie up the resources of an organization or company. Clearly an abuse of due process.

Section 505: National Security Letters
Authorizes the use of non-judicial National Security Letters in place of warrants to compel the disclosure of sensitive information held by banks, credit companies, telephone carriers and Internet Service Providers, among others. Particularly troubling is that these letters also carry a provision prohibiting those who receive them from making any public disclosure of the fact, an effective gag order which violates several sections of the Bill of Rights. The ACLU has filed a number of lawsuits in defense of victims of this abusive practice.

Section 802: Expanded Definition of Domestic Terrorism

This section broadens the definition of a terrorist to include domestic as well as international terrorists and does it with language sufficiently broad to potentially include many groups whose forms of protest or activism are contentious or disruptive, but not necessarily actually criminal or violent. Under this definition groups like Greenpeace, Operation Rescue, environmental groups and many anti-government protest groups could be classed as terrorists. There is also clear indication from the Department of Justice that they would like to expand application of this provision even further. This is clearly contrary to free speech and free assembly provisions of the 1st Amendment.

Section 806: Asset Seizure
This expands on the practices we’ve already seen abused extensively in the War on Drugs, based around the illogical premise that if someone is merely suspected of a crime it is acceptable to seize their property or their financial assets as evidence or potential evidence, even if they are never charged or sent to trial. In these cases the seized assets are almost never returned to the owner and there is no real process for redress or an appeal when charges are not filed. This has been a problem withe the Drug War and the same concerns apply here. This section and several related sections allow the seizure of the assets of organizations and individuals suspected of supporting terrorism even when they have been convicted of no crime. This section builds on the extraordinarily broad language of section 981 of the US Civil Code and goes beyond property used in a crime to include property which might be used in a future crime and property belonging to anyone defined as a “source of influence” of terrorism, whatever that means. This concept is derived from the RICO statute, but without the rules requiring the proof of a criminal conspiracy which it includes.

Section 6001: Lone Wolf
This section allows the government to obtain secret surveillance orders against any individual even if they are not directly linked to any international terrorist group or foreign nation. It basically allows them to spy on anyone and they don’t have to ever inform the subject they have done so. The entire idea of secret warrants is contrary to the principle of due process under the 4th Amendment. Under this provision the government can essentially spy on anyone on the pretext that they might potentially communicate with a terrorist or terrorist organization, or just because they think they look suspicious. There are no real qualifications and secrecy means there’s no accountability either.

Of course, all of these sections of the USA PATRIOT Act are to some degree interconnected with other parts of the act and it’s difficult to just eliminate a few of them without changing many other parts as well. This suggests that allowing the entire set of laws to expire at the end of the month would be the most practical solution. But at the very least, these 7 sections ought to be looked at closely and made to conform with the protections guaranteed in the Bill of Rights. Searches should not be conducted without judicial oversight, suspects should not be investigated and put under surveillance without due cause and property rights should be respected unless someone is actually convicted of a crime.

The Bill of Rights exists for a reason and it has become clear that there is no threat to this nation from terrorism or other sources which justifies the multi-front assault on our rights which is embodied in the USA PATRIOT Act. It is the greatest assault on our civil liberties as a people since the time of the Civil War. If you feel that these draconian measures are justifiable for security reasons and okay in general because you aren’t a terrorist or likely to associate with terrorists, consider how broad this language is and how easily it could be abused and used against even the most innocent among us for political or personal reasons.

You don’t have to sit back and wait for Congressmen who have shown little interest in correcting their past errors to come to their senses. You can help them along by contacting your representative or others who are on specific relevant committees using the convenient information on ContactingtheCongress.org.

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